State of New Jersey v. Terrance Clyburn

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.TERRANCE CLYBURN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1143.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 25, 2012 -

Before Judges Yannotti and Harris.

Defendant Terrance Clyburn appeals from the February 3, 2010 order denying his petition for post conviction relief (PCR). We affirm.

I.

Clyburn was tried by a jury and convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third-degree distribution of CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(1).

After merger, application of an extended term, and a remand for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005) and State v. Thomas, 188 N.J. 137 (2006), Clyburn's aggregate sentence was fixed at eleven and one-half years in prison with a five and one-half-year period of parole ineligibility. We affirmed the conviction and ultimate sentence. State v. Clyburn, No. A-1480-05 (App. Div. Dec. 6, 2007); State v. Clyburn, No. A-0423-08 (App. Div. Mar. 4, 2009). The Supreme Court denied further review. State v. Clyburn, 195 N.J. 419 (2008).

Clyburn filed a pro se petition for PCR on September 24, 2008. After the assignment of counsel, the Law Division conducted a hearing on the petition in February 2010. The court focused primarily on Clyburn's claims that his trial and appellate attorneys had failed to effectively represent him. Finding that Clyburn's arguments were meritless and his grievances with defense counsel explained as appropriate exercises of trial strategy, Judge Jared D. Honigfeld declared that he "could find absolutely no basis to grant the application" and entered an order denying PCR. This appeal followed.

II.

Before assessing Clyburn's contentions on appeal, we recite the facts that were adduced at trial as reflected in our earlier opinion:

On August 31, 2003, Paterson Police Department narcotics officers, Detective Sergeant Thomas Trommelen, Detective Vaughn Patterson, Detective William Palomino, and Patrolman Ronald Altmann, conducted a drug investigation in the area of a multi-family dwelling located at 151 Temple Street, in Paterson. The building is located within 1000 feet of a school.

The police officers divided themselves into two teams. Altmann and Trommelen acted as surveillance officers, while Palomino and Patterson formed the arrest team. The surveillance team's duty was to not only identify individuals to be arrested, but also to relay that information to the arrest team. Based on the relayed descriptions, the arrest team would apprehend the suspects.

Upon arriving at the scene, the officers positioned themselves at different locations. Trommelen and Altmann remained in their parked, undercover vehicles, with an unobstructed view of the building. The surveillance officers observed defendant, who was standing at the top of the steps leading to the front door of the building, talking to a second male, who was standing at the foot of the stairs. The second male was wearing blue jeans, a white T-shirt, and a Lakers hat.

At about 5:00 p.m., an unidentified third male approached the second male on a bicycle. After speaking briefly, the second male held up two fingers. The second male walked to defendant, who then removed a clear, plastic baggie from his pants, and handed the second male several small items. The second male handed the items to the bicyclist, who in turn, after presenting paper money to the second male, left the scene. Based on these events, Altmann and Trommelen believed that they had just observed a "hand-to-hand drug transaction." After the bicyclist left, Trommelen attempted to follow him, but lost sight of him. Trommelen then returned to the scene to set up a second surveillance point.

About twenty minutes after the transaction with the bicyclist, a white Jeep Cherokee operated by a female arrived in the area. The second male jogged across the street, conversed with the female driver, and returned to defendant, holding up one finger. Again, defendant removed a clear, plastic baggie from his pants and gave the second male an item. The second male returned to the Jeep, and exchanged the item for money with the driver. The second male then returned back to defendant, handing defendant money, which defendant again placed into his pocket.

At the conclusion of the transaction, the Jeep left the area. Trommelen, after radioing a description of the Jeep and its license plate, then pursued the Jeep. The Jeep pulled into a gas station, whereupon Patterson and Palomino pulled up behind it, while Trommelen parked in front of it. The officers approached the Jeep, asking the female driver to exit. After Palomino saw the operator throw a plastic bag onto ground, the officers arrested the driver. One plastic baggie of suspected crack cocaine was recovered at the scene. The seized substance later tested positive for cocaine.

Shortly after the arrest of the female driver, Detectives Patterson and Palomino returned to the building at 151 Temple Street, having received in the interim a description of defendant and the second male involved in the drug transactions. When the detectives arrived, defendant ran into the building. The detectives yelled, "Stop, Police," but to no avail. Defendant ran up the stairs, locked himself in an apartment, and turned on a radio or television loudly.

The detectives forced the apartment door open, found defendant walking out of a bathroom, and heard water flowing into the toilet tank. A clear, empty, wet plastic baggie was found on the bathroom floor. At the time of arrest, defendant had $385 in his possession. However, no drugs were either found on him or in the apartment. [State v. Clyburn, supra, slip op. at 3-6.]

From this record, Clyburn presents the following points of argument for our consideration:

POINT I: THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ASSERTING INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION ...

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